IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

In the matter of:

WRIT PETITION NO. 4650 of 2020 In the matter of:

An application under Article 102of the Constitution of the People’s Republic of Bangladesh.

-And-

In the matter of : Qazi Anwar Hossain

..…. Petitioner

Versus-

The Government of Bangladesh and others

     ..... Respondents

Mr. Murad Reza, Advocate with

Mr. ABM Hamidul Misbah, Advocate(s)

   ……For the petitioner Mr. Khurshid Alam Khan, Advocate with

Mr. Md. Iftabul Kamal, Advocate(s)

….. For the respondent Nos. 1, 2 and 4

Heard on 14.11.2021, 09.12.2021 and Judgment on 13.12.2021

 Present:                   

Mr. Justice Md. Ashfaqul Islam

And

Mr. Justice Md. Iqbal Kabir

Md. Ashfaqul Islam, J:

This Rule under adjudication, at the instance of the petitioner Qazi

Anwar Hossain, issued on 10.09.2020, was in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the proceedings of the Copyright

Complaint No. 24/2019 before the respondent No. 4 for infringement of copyright drawn up against the petitioner, and the adjudication order, dated 14.06.2020, passed by the respondent No. 4 in the said Copyright Complaint No. 24/2019 in violation of sections 81 and 92 of the Copyright Act, 2000, and without jurisdiction (Annexure-‘D’) should not be declared to have been proceeded without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper.”

At the time of issuance of the Rule the operation of the adjudication order, dated 14.06.2020, passed by the respondent No. 4 in Copyright Complaint No. 24/2019 (Annexure-‘D’) was stayed by this court which was time to time extended.

Background leading to the Rule in short is that one Sheikh Abdul Hakim (who has not been made a party in this writ petition) on 29.07.2019 filed an application before the respondent No. 4, Registrar of Copyrights Office, Bangladesh under Section 71 and 89 of the Copyright Act, 2000 (hereinafter referred to as Act, 2000) and the said Sheikh Abdul Hakim has claimed himself as the author of some of the books of “Masud Rana” and ‘Kuasha’ series respectively, that was published by the  petitioner,  alleged  Copyright  infringement,  claimed  royalty  and sought relief from the respondent No. 4 for the same. It has been stated that the same application, does not, in any way, relate to any registration of copyright of a work, or for registration of assignment of copyright in a work, or issuance of license for any Copyright work whatsoever, as it could be found from Annexure-‘B’ to the writ petition.

It  has  been  further  stated  that  the  respondent  No.  4  took cognizance  of  the  said  complaint  being  Copyright  Complaint  No. 24/2019,  and  issued  several  notices  upon  the  petitioner,  dated 20.08.2019, 20.09.2019 and 21.10.2019 respectively, stating the matter as and directed the petitioner to appear before him (Annexure-‘C’, ‘C-1’ and ‘C-2’ to the writ petition).

The petitioner through his legal representative appeared before the respondent  No.  4  and  submitted  written  objections  stating  amongst others  that  the  respondent  No.  4  does  not  have  any  jurisdiction  or authority to take cognizance of, hold trial or dispose of, and adjudicate the said complaint for being a copyright infringement  matter as per Section 81 and 92 of the Act, 2000 which was manifestly disregarded by the respondent No. 4, who unlawfully proceeded to adjudicate the same, and ultimately disposed of the application through passing the impugned order dated 14.06.2020 as envisaged in Annexure-‘D’ to the petition. The petitioner thereafter served notice demanding justice dated 27.07.2020 to the respondents requesting to rescind or withdraw and recall the impugned order. Right thereafter he moved this Division and obtained the present Rule and order of stay.

Mr. Murad Reza, the learned Advocate appearing with Mr. ABM Hamidul Misbah, the learned Advocate upon placing the petition, supplementary affidavits and other materials on record mainly mooted the argument that the respondent No. 4 wrongly took cognizance of the application filed by one Sheik Abdul Hakim under Section 71 and 89 of the Act, 2000 in as much as no power has been conferred upon the respondent under the said Act and hence it had acted without jurisdiction and in access of jurisdiction and the decision therefore, has been done without any lawful authority and is of no legal effect which should be declared unlawful.

In elaborating his submissions the learned Counsel has traveled together with us on several Sections of the Copyright Act, 2000 and tried to impress upon us that the periphery, jurisdiction, scope and limit of the respondent No. 4, Registrar has very well been categorized under different laws in the Act, 2000 itself. He has started with Section 10 of the Act which runs thus:

“১০। (১)     , এই ই                , এ জ      ই    জ                 এ                                  ই          জ               

।

(২)   জ  -

( ) এই ই              [    ই    জ    ]  ল এ               ;

( )     ই          ল               ই     ল                     

      ও                         ;

( ) এই ই                                     ল           এ         ল       ;  

(ঘ)                                ল             ।

(৩)     ই          জ  ,   জ             ও             , এই ই  

       জ     ঐ  ল     ,                     জ  ,       ,       

; এ  এই ই  "  জ  "              জ  ও        ই ।”

Be it mentioned that there is Copyright Board constituted under

Section 11 of the Act:

“১১। (১)     , এই ই        ও                ,     ই            এ         ঠ      ,    , এ জ           ও        ইজ          ছ

জ                 ই ।”

Section 12 of the Act, 2000 describes the powers and functions of the Board as follows:

১২। (১)     , এই ই                        ,       ঠ       ও   

।

(২) এই ই                                                -       ই ল,

                               ই :

              ,                            ,                         

        ই ।

(৩)          ৯৯ এ                                        জ                 এ  এই                                জ                জ           ই ।

(৪)                                     ছ          ঠ           ছ       এই                    জ                  ই                   লই           ই   ।

(৫)   জ    [             ৪৮০ ও ৪৮২ এ               ,      এ    ও       ল          ই এ              জ                        ল    

            ১৯৩ ও ২২৮ এ                                       ই ।]

(৬)                                     এ                                                                 ছ।

Thereafter, he has drawn our notice to Chapter 10 of the Act, 2000

that has exclusively dealt with all the formalities regarding Copyright registration. It contains Sections 55 to 61.

As it has been already mentioned that core of his submission is that the complainant Sheikh Abdul Hakim misdirected himself in filing the application before the respondent No. 4 since there is no provisions as such to lodge a formal complaint of this kind before the registrar under the Act, 2000. His area of work or jurisdiction have been strictly confined within the domain of the above quoted laws and he does not have any power to adjudicate on the question of infringement of copyright under Sections 71 and 89 of Copyright Law, 2000. Therefore, the learned counsel vehemently submits that in all fairness this Rule should be made absolute.

On the other hand Mr. Khurshid Alam Khan, the learned Advocate appearing with Mr. Md. Iftabul Kamal, the learned Advocate on behalf of the respondent Nos. 1, 2 and 4 has filed an application for vacating the order of stay where they have formulated in material particulars the reasons for filing the complaint before the Registrar. For consideration, deliberations has been given upon paragraphs 4 to 13 of the said application for the vacating the order of stay. The sum and substance of their submissions is that the grievances that has been made by filing a complaint under Sections 71 and 89 of the Act, 2000 is very much in the nature of an administrative representation and the order impugned against does not also conclusively give any decision on the issue rather it has suggested the forum where the parties in a given situation would find their remedies under the Copyright Act, 2000.

Further drawing our notice to Section 95 of the Act, 2000 Mr. Khurshid Alam Khan has submitted that against any final order of the Registrar a person aggrieved may file an appeal before the Board as constituted under section 11 as aforesaid. Further if anyone is aggrieved against the decision of the Board may file appeal before the Hon’ble High Court Division. Therefore, this writ petition in its present form is not maintainable since the petitioners have a positive remedy under the Act, 2000.

That being the situation the only question that faces this Division in this writ petition is whether under the facts and circumstances of the instant case this writ petition itself is maintainable.

We have heard the learned Counsels of both sides and considered their submissions carefully. We have gone through the petition, supplementary affidavits, application for vacating the order of stay and the relevant laws of the Copyright Act, 2000 minutely.

Further, to have a clear view on the issue and to have a positive assistance we appointed the learned Advocate Mr. Qumrul Haque Siddique as amicus curiae in this case. Mr. Siddique was candid enough to attend the course of proceedings virtually and also submitted a written argument. In his written argument he has mentioned some salient features of laws under the Act, 2000 construing the jurisdiction and function of the Registrar. Mr. Siddique tried to advance mainly the point that for exercising the power of registration or refusal of Copyright, the Registrar may require enquiring and decide issues of fact, which may be dispute of civil nature. In such cases the Registrar will be entitled to exercise the powers under Section 99 of the CRA. This does not give the Registrar any power to sit upon an allegation under Sections 71 and 89 of the Act, 2000. We have noted his contention with all importance to relate the same with the issue before us.

The matter before us certainly has a chequered Career. Admittedly one Sheikh Abdul Hakim who was not made a party in this writ petition lodged a complaint before the Registrar under Section 71 and 89 of the Copyright Act.

It is admitted that the petitioner Qazi Anwar Hossain also participated in the proceeding before the Registrar as answering defendant and the parties in the proceeding pointedly raised their views on different aspects of the case. It is also admitted that the petitioner Qazi Anwar Hossain raised the question of maintainability in the proceeding before the Registrar as well. Since the question involves factual factum together with intricate question of law we would like to address and interpret the same in respect of particular Copyright law. Section 92 enjoins:

“৯২।      জজ   ল                     ল এই ই                  ,     ৬৬ এ             ,                     ।”

Now section 66 states:

“৬৬। (১)                              ই   এ               

                             ল এই                                  ।

(২)       ল      জ                    জ                       ল এই

                                                 ।”

Therefore,  to  bring  any  criminal  action  in  respect  of  any infringement  under  this  Act  it  has  to  be  at  the  initiation  of  the government itself.

Let us now read Section 99 of Chapter 17 of the Act, 2000:

“৯৯। [ ও             ]            ও       ল              ল   জ  

ও      এ              ও       ল              ,   :-

( )            এ                            এ                 

;   

( )       লল      এ              ;

( ) ল               ; 

(ঘ)          লল       জ              ;

(ঙ)        ল         ল  ই                             ল   ল    ;

( )                         ।

     ।-             ল  ,   জ     ,     ,      এ          

             ই        ল   ।”

As it has been already mentioned that under Section 95 of the Act, 2000  any  decision  of  the  Registrar  is  appealable  before  the  Board constituted under Section 11 of the Act. The impugned order has vividly crystallized that it has not given a final decision so to term the same as

an adjudication order.

For better understanding and appreciation we would like to quote a relevant portion from the order itself:

If  we  glean  the  entire  factual  aspect  conjunct  with  different provisions that we have already discussed, our considered view would be that the order impugned against is not any conclusive decision on the infringement  of  Copyright  by  the  petitioner  rather  the  order  has suggested what should be the subsequent modus operandi permissible under the Copyright Act itself. The Petitioner has different option or recourse under the Act which he may avail if so advised. Already we have discussed the relevant laws and left nothing unsaid on the issue.

That being the situation, our precise view is that under Article 102 of the Constitution it is not legally approved to address any of the issues that has been agitated before us since the petitioner may find his relief under the Copyright Act itself as hinted aforesaid. In various decisions we have found that the provisions of Section 94, 95 and 96 of the Act, 2000  have  been  taken  recourse  to  before  the  Hon’ble  High  Court Division.

Besides, chapter 14 of the Act, 2000 under Sections 75 to 81 has given a wider scope and power to the parties to agitate any grievances before  a  Court  of  Civil  jurisdiction.  However,  this  will  depend absolutely upon sweet will of the parties themselves.

With the above observation and findings this Rule is discharged as not being maintainable. There will be no order as to cost. The order of stay granted earlier is hereby recalled and vacated.

Communicate at once.

Md. Iqbal Kabir, J:

                                          I agree.

Ismail (B.O)